Death penalty laws in Virginia vs. South Carolina: two southern states moving in opposite directions
By Kebin Lopez & Elvira Oviedo
Kebin Lopez is a SC4CJR Spring 2021 Law Clerk and a 2L at the University of Florida, Levin College of Law
Elvira Oviedo is a SC4CJR Spring 2021 Law Clerk and a 2L at the University of South Carolina School of Law
INTRODUCTION
Republican lawmakers in South Carolina recently introduced a bill which would make the electric chair the default method of execution if an inmate’s preferred method of execution is not available.1 The bill would place South Carolina lawmakers further from abolishing the death penalty while simultaneously violating the Constitution’s Eighth Amendment and subjecting inmates to execution by method of electric chair against their will.
A. VIRGINIA’S ROAD TO THE ABOLITION OF THE DEATH PENALTY AND THE STANDARD IT SETS FOR OTHER SOUTHERN STATES
The state of Virginia is poised to become the first southern state to abolish capital punishment in the upcoming months.2 In 2019, the Democratic Party took control of the state Legislature and a series of progressive laws soon followed.3 The Virginia House of Delegates recently passed a bill which put a ban on capital punishment and Governor Ralph Northam, also a Democrat and a staunch supporter of other progressive bills, has pledged to sign the bill.4
While some Republicans argued that capital punishment is justified because the nature of the crimes committed that warranted capital punishment were so terrible as to be deserving of such punishment, Democrat lawmakers and capital punishment opponents rejected that argument.5 Death penalty abolitionists argued that the death penalty was archaic and was often subject to racial inequities and false convictions.6In response, Republicans asserted that faster and more conclusive DNA evidence combined with the small number of capital cases meant that capital punishment would rarely be applied.7 However, rebuttal from Democrats pointed out that since the United States Supreme Court restored the use of the death penalty in the United States, that Virginia alone had executed 113 people since 1976, making it the state with the second highest amount of executions behind only Texas.8
House and Senate Republicans tried to pass a bill in 2016 that would make the electric chair the default method of execution in Virginia.9 The bill was written as a response to the shortage of lethal injection drugs available to prisons due to pharmaceutical companies refusing to sell such as drugs as they faced intense pressure from anti-death penalty groups and boycotts.10 Democratic Governor Terry McAuliffe stripped the bill of the electric chair provisions but kept in provisions which allowed for the continuance of ordering lethal execution drugs by pharmacies who were allowed to keep their identity a secret.11
Although at the time only a small step towards abolishing the death penalty in Virginia, the death of the electric chair provision has allowed Democratic Virginia lawmakers to be on thecusp of making Virginia the first southern state to abolish the death penalty. Such is the example that South Carolina needs to follow. A bill recently introduced and voted in favor of by Republican lawmakers would make the electric chair the default method of execution in South Carolina if lethal injection were not readily available.12 Taking into consideration the shortage of execution drugs nationwide, the bill gives the pretense of choice while effectively subjecting inmates to the electric chair even if they choose execution by method of lethal injection. Not only does the bill violate the Eighth Amendment which prohibits cruel and unusual punishment, but the bill puts South Carolina further away from the road to abolishing the death penalty.13
B. SOUTH CAROLINA’S PROPOSED BILL TO BRING BACK THE ELECTRIC CHAIR
The death penalty has been legal in South Carolina since 1976; however, the state’s last execution was in 2011 and in total thirty-seven people are currently on South Carolina’s death row.14 In 1995, lethal injection became the default method of execution in the state, but persons on death row are given the choice of execution by electrocution or lethal injection.15 If the person on death row chooses lethal injection, the state cannot execute the person to death by way of the electric chair.16 This could soon change with the new bill proposed by State Senators Greg Hembree (R-Horry) and Shane Martin (R-Spartanburg) which would technically still allow people on death row a choice between the lethal injection and electrocution, but if the lethalinjection were not available, the execution would be carried out by way electrocution, even despite their wishes.17
A similar bill was filed in the previous legislative session, and while the bill passed the Senate, it did not receive a vote on the House floor.18 Proponents of the current bill say it is necessary in order to carry out the sentences of the court, which South Carolina is currently not able to do due to the shortage of the drug cocktail used for executions nationwide.19 Opponents of the bill stress that using the electric chair to carry out executions violates the Eight Amendment which protects against cruel and unusual punishment.20 Many view electrocution as barbaric and they point to South Carolina acknowledging this when it allowed persons on death row to choose execution by lethal injection in 1995.21 Additionally, it is likely that this new bill, if passed, would spur lawsuits from persons on death row over whether their constitutional rights were violated.
The Supreme Court has not spoken directly as to whether execution by electrocution violates the Eighth Amendment’s ban against cruel and unusual punishment.22 However, the Supreme Courts of Nebraska and Georgia have ruled that the use of the electric chair violates their state constitutional prohibitions against cruel and unusual punishment.23In 2000, the Georgia state legislature passed a provision that if an authoritative court found electrocution tobe cruel and unusual all executions would take place by lethal injection.24 The Georgia Supreme Court viewed that this provision was intended to prefer the lethal injection as a less barbarous and less painful method of execution.25 The Court concluded that death by electrocution involves more than the mere extinguishment of life and that it also inflicts physical violence and needless mutilation that makes no measurable contribution to accepted goals of punishment.26 Similarly, the Nebraska Supreme Court noted that a method of execution must accord with the dignity of man which is the basic concept underlying the prohibition against cruel and unusual punishment.27 The Nebraska Supreme Court considered the contemporary scientific evidence relation to the physiological effects on the electrocution on the human body, stating that “electrocution will unquestionably inflict intolerable pain unnecessary to cause death in enough executions so as to present a substantial risk that any prisoner will suffer unnecessary and wanton pain in a judicial execution by electrocution.”28
CONCLUSION:
It is unclear what fate this bill will meet in the General Assembly, but it is clear that Governor McMaster is supportive of the bill if it were to pass.29 If passed, the bill will undoubtedly give rise to a legal battle that may ultimately reach the South Carolina Supreme Court. Other State Supreme Courts have ruled that execution by electric chair violates the Eighth Amendment’s ban on cruel and unusual punishment. Those State Supreme Courts focused on the barbaric nature of electrocutions and the evolving standards of science. Accordingly, it is apt to note that South Carolina is one of the nine states that still allow the death penalty by electrocution, but if this bill were to pass it would be the only state in the country to make it the default method for execution.30 Such an outcome is not only a violation of our Constitution, but barbaric and regressive towards the journey to criminal justice reform.
1 See Emily Bohatch, Electric chair could make a comeback in SC as lawmakers advance bill, THE STATE (Feb. 11, 2021 10:43 AM, updated Feb 11, 2021 11:44 AM), https://www.thestate.com/news/politics government/article249175750.html?fbclid=IwAR147f9XSOr3H8rQiEpd-Q1gzYkN8hALvvCJ1ALUy3JsZT2EyCpChrFL5E [hereinafter Electric Chair Comeback in SC].
2 See Trip Gabriel, Virginia, Shifting Left Fast, Moves Closer to Abolishing Death Penalty, THE NEW YORK TIMES (Feb. 4, 2021), https://www.nytimes.com/2021/02/04/us/politics/virginia-death-penalty-northam.html [hereinafter Virginia’s Shift to Abolishing Death Penalty].
3 See Id.
4 See Id.5 See Id.
6 See Id.
7 See Id.
8 See Id.
9 See Id.
10 See Id.
11 See Id.
12 See supra Electric Chair Comeback in SC.
13 See Id.
14 See Michelle Liu, SC delays execution, citing lack of lethal injection drugs, ASSOCIATED PRESS, Nov. 30, 2020, https://apnews.com/article/south-carolina-courts-executions
931bae9dd612fe341f3c09b0bcd8ff91#:~:text=Moore%20is%20one%20of%2037,last%20execution%20was%20in %202011 [hereinafter Liu Associated Press].
15 See Jeffrey Collins, Associated Press, S Carolina mulls electric chair as only option for condemned, ABC NEWS, Mar. 3, 2020, https://abcnews.go.com/US/wireStory/carolina-mulls-electric-chair-option-condemned-69351930 [hereinafter Collins Associated Press].
16 See supra Liu Associated Press.17 See S. 200, 124th Gen. Assemb., Reg. Sess. (S.C. 2021) (unenacted bill).
18 See S. 176, 123rd Gen. Assemb., Reg. Sess. (S.C. 2019) (unenacted bill).
19 See Maurice Chammah & Tom Meagher, How the Drug Shortage Has Slowed the Death-Penalty Treadmill, THE MARSHALL PROJECT, (April 12, 2016, 5:29 PM), https://www.themarshallproject.org/2016/04/12/how-the-drug shortage-has-slowed-the-death-penalty-treadmil.l
20 See supra Collins Associated Press.
21 See S.C. CODE ANN. § 24-3-530 (1995).
22 But see In re Kemmler, 136 U.S. 436 (1890) (holding that death by electrocution is constitutional and does not violate the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment); Louisiana ex rel. Francis v. Resweber,329 U.S. 459 (1947 ) (holding that re-executing an inmate after a failed electrocution attempt does not constitute cruel and unusual punishment).
23 See State v. Mata 745 N.W.2d 229 (Neb. 2008); Dawson v. State, 554 S.E.2d 137 (Ga. 2001).24 As amended, see GA. CODE ANN. § 17-10-38 (2010).
25 See Dawson, 554 S.E.2d at 144.
26 See Id.
27 See Mata, 745 N.W.2d at 264 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)).
28 Id. at 278.
29 Emily Bohatch, Why 2021 Could Be the Year SC Makes the Electric Chair the Main Mode of Execution, THE STATE, (Dec. 16, 2020, 12:04 PM),
30 https://www.thestate.com/news/politics-government/article247858405.htm.l See DEATH PENALTY INFORMATION CENTER, METHODS OF EXECUTION, http://www.deathpenaltyinfo.org/executions/methods-of-execution.